The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Wednesday, June 04, 2008

NYT: Obama stands "calm in the swirl of history"; also time-travels, but makes no time for clerkship and little time for practicing law

In a fawning news article by Michael Powell, the New York Times today describes Barack Obama as "a protean political figure, inspiring devotion in supporters who see him as a transformative leader even as he remains inscrutable to critics." The basic facts of his biography, however, such as they are, are apparently also inscrutable even to adoring reporters from the NYT.

In the article's fourth paragraph: "He turned down a prestigious federal appellate court clerkship while at Harvard to work as a community organizer." And then later, in more detail:

Abner J. Mikva, the former judge, asked Mr. Obama, fresh out of Harvard, to apply as his clerk. Mr. Obama declined, preferring to labor as a community organizer. But, characteristically, he later befriended the older man.

The problem with this is that Obama's "community organizer" days preceded his Harvard Law School days. And after graduating from Harvard Law, Obama went to work at least nominally as an associate attorney at the small Chicago law firm then known as "Davis, Miner, Barnhill & Gallard," with which he continued to be affiliated in a more limited capacity throughout his Illinois Legislature tenure up until his U.S. Senate run in 2004. [Update: But see my update below, re 1991-1993, during which it appears that Obama probably temporarily returned to activities that could qualify as a "community organizer" even after getting his law degree and law license. Mea culpa (although I had some help in making this mistake).]

I say "at least nominally" because that "law firm says Obama logged 3,723 billable hours during his tenure from 1993 to 2004, most of it during the first four years." Even Obama's civil rights or other "public interest" legal work would have been logged — such lawsuits always seek awards of attorneys' fees, and you can't get them unless you've logged the hours, even if your clients weren't paying you out of pocket. But that's fewer hours than would typically be logged in two years by almost any young associate at almost any big-city for-profit law firm. Supposedly Obama took time off to work on his first autobiography. But it's still hard to see how he can be described as ever having been more than a part-time, not-very-serious lawyer, at least based on those numbers and the very vague descriptions of his legal work provided in his books or in news articles like this one.

Look, it's not like the guy has held a whole lot of responsible jobs. That not even his hagiographers at the New York Times can keep them straight also suggests that there's also a lack of substance to the jobs Obama purports to have held. It's either that or, gosh, he's so "transformative" that he can time-travel.

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There's also something a bit hinky about the judicial clerkship Obama so nobly turned down.

I do not doubt that Obama, as a magna cum laude graduate and president of the Harvard Law Review, could have landed a prestigious federal circuit court clerkship upon his graduation in 1991. Indeed, those credentials would typically lead to clerking for a prestigious circuit judge and, in the second year following graduation, a Supreme Court clerkship. And Judge Mikva, a Carter appointee from 1979, was by 1991 the Chief Judge of the U.S. Court of Appeals for the D.C. Circuit. An opportunity to clerk for him would indeed have been much coveted.

But the normal protocol is that students make written applications for such judicial clerkships. The unwritten understanding is that law students aren't supposed to apply to any judge from whom they wouldn't immediately accept a position if tendered. (I.e., no student is supposed to answer "no" to a clerkship offer.) So did Obama apply, get an offer, and then turn Chief Judge Mikva down anyway? Or was Obama, as the first black president of the HLR, already such a rock-star in legal-academic circles that he received an unsolicited offer from Judge Mikva?

(A third possibility, I suppose, is that Judge Mikva had a "standing offer" to every year's HLR president. I've heard of such arrangements, but I don't know if Judge Mikva indulged in them; and my impression was even such judges who do have such arrangements still prefer that the students go through the formality of submitting an application.)

I don't doubt that Obama and Judge Mikva later became friends, since both were non-tenure track instructors at the University of Chicago Law School later in the decade. And Mikva was a very political lawyer who later served as White House Counsel for the Clinton Administration, so it's not inconceivable that he might have been more than casually receptive to career tracks like Obama's.

Perhaps my suspicions are unfounded, and they're just a product of my surprise that someone with law school credentials bespeaking extraordinary legal talent apparently chose never to use that talent in any really significant way. I'm personally unsympathetic to the notion that turning down the clerkship was so noble: I clerked for a federal circuit judge in 1980-1981, and without exception, every lawyer I know who served as a law clerk to a federal judge feels that he or she rendered a valuable public service by so doing, almost certainly greater in scope than what we could have done even at a "public interest" law firm. Given his political sympathies, the idea that he could have done more "good" working for a small Chicago firm during his first year out of law school than he could have while working for a liberal judge like Mikva is pretty hard to swallow. But suffice it to say that Obama's achievements as a practicing lawyer appear to be even thinner than his achievements as a state or federal legislator.

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UPDATE (Wed Jun 4 @ 6:50pm): Or did the NYT get it right after all? I hate to make mistakes in posts, but when I do, I'd rather catch and admit them myself.

The descriptions I'd previously read of Obama working as a "community organizer," and certainly his experiences in that role as told in his first book, Dreams from My Father, all focus on 1985-1988. But Obama's Wikipedia entry currently says, of his immediate post-law school activities, only this: "Obama graduated with a J.D. magna cum laude from Harvard in 1991, then returned to Chicago where he headed a voter registration drive and began writing his first book, Dreams from My Father, a memoir published in 1995." In turn, it references this article from Chicago Magazine in January 1993 about his work in a voter registration drive in 1992. If that also counts as "community organizer" — and I suppose it could, since that job description could mean almost anything — then perhaps he returned to that vocation, briefly, after law school:

Carol Moseley Braun's upset primary victory over Alan Dixon last March [i.e., March of 1992] altered [Project Vote! founder Sandy] Newman's feelings. "It's not that I wanted to influence the Senate race," Newman says. "Project Vote! is nonpartisan, strictly nonpartisan. But we do focus our efforts on minority voters, and on states where we can explain to them why their vote will matter. Braun made that easier in Illinois." So Newman decided to open a Cook County Project Vote! office and went looking for someone to head it.

The name Barack Obama surfaced. "I was asking around among community activists in Chicago and around the country, and they kept mentioning him," Newman says. Obama by then was working with church and community leaders on the West Side, and he was writing a book that the publisher Simon & Schuster had contracted for while he was editor of the law review. He was 30 years old.

When Newman called, Obama agreed to put his other work aside. "I'm still not quite sure why," Newman says. ''This was not glamorous, high-paying work. But I am certainly grateful. He did one hell of a job."

In that case, it's the LAT instead of the NYT who's confused (and partly responsible for my confusion), because of this statement in its April story about Obama's work as a lawyer: "Obama arrived in Chicago in 1993 with a degree from Harvard Law School and was hired as a junior lawyer at the firm then known as Davis, Miner, Barnhill & Gallard."

The remainder of my confusion can be sourced to Obama's own biography page on his campaign website, which doesn't deign to use many actual dates: "He went on to earn his law degree from Harvard in 1991, where he became the first African-American president of the Harvard Law Review. Soon after, he returned to Chicago to practice as a civil rights lawyer and teach constitutional law." No mention there of a temporary return to "community organizer" status either.

I do know that Obama was licensed in Illinois in December 1991, from which we can confidently infer that he took and passed the summer 1991 bar exam. Beyond that, however, commenters are welcome to provide more info, especially if accompanied by links.

Comments

Dear Mr. Dyer: As soon as I read that Obama had racked up 3700 hours mostly in four years, I thought, gee that isn't working yourself to death. Glad you confirm this.

What do you think of this?:

1. Obama goes to work for a law firm, but surely doesn't burn the midnight oil. That's certain death if you are bucking for partner. Even if you aren't, it's hard to imagine most firms taking on unknowns and letting them work so desultorily.

2. Obama becomes president of the Harvard Law Review. During his tenure, the Law Review publishes articles that are rarely cited, which is a common mesure of a law review president's luster.

3. He turns down a clerkship for a federal judge after being asked. Unusual even to be asked, let alone turn it down.

4. He's elected to the Senate, knowing nothing of foreign affairs. No disgrace, that's the way most frosh Senators begin. Too, Obama is in the ideal place to learn about foreign affairs: the Foreign Relations Committee. But his choices for subcommittees: a) Africa and b) Europe. Can you think of a more stereotypical assignment: "Here's a black guy, let's give him Africa, especially since his old man was from Kenya." Nor can Africa have the same weight to America as say, the Middle East or China. In 2007 he becomes chairman of the European subcommittee---and does not hold a single hearing all year. What do you think he's learned during his time on the Committee?

5. He becomes a community organizer with only an undergraduate degree in poli sci and 18 months experience, admittedly with a Nader affiliate. How effective a community organizer could he have been?

6. He gets into the Illinois Senate because the incumbent is thrown into Lake Michigan complete with anvil chained to her neck. He gets into the US Senate because his GOP opponent's scandals are blared to the world, and the replacement opponent is a zany.

Do you see a pattern here? The man's energy level is alarmingly low, at least in public events that require some "grinding" and burning of midnight oil. He does seem to have talent for raising money and speechifying. He also seems to have talent in attracting patrons who are willing to smooth his way. But why would they do so, beyond Obama's superficial appeal?

Obama is not shy about invoking the spirit of John Kennedy. The parallel is apt, the more so because of all the times Kennedy fell into the swamp. Kennedy had great skill in pirouetting out of the swamp once in---but he kept falling in. See: Bay of Pigs. See: Vienna summit. See: "the stroke of a pen" to solve discrimination in housing. See: Cuban missile crisis. Above all, see: Vietnam.

What's going to protect Obama from similar pitfalls? He gives a distinct impression that foreign affairs is tedious to him. He will soon find what all Presidents learn: the Executive has far fewer fetters in foreign affairs compared to domestic matters. The country is in for some expensive tuition to teach him this though.

Mr. Koster, I would say he's a very ambitious slacker, but for that magna cum laude at HLS.

My own law school days were a decade earlier and at a mere top-20 law school. But there was no one in the top 10 percent of my law school class who was a slacker. To the contrary, all of them, without exception (and including not only my own class but the ones that preceded and followed it, which I also observed first-hand), were "wicked smart" and fiendishly hardworking. (Being merely brilliant, or merely hardworking, might get you into the top half, but not the top quarter.)

Based on objective criteria like LSAT scores and college GPAs, the pool of smart folks is deeper at Harvard, but I frankly can't believe anyone could consistently make top grades there just on the basis of raw smarts, while coasting. As far as I know, HLS students, then and now, were usually graded "blind" (without profs knowing whose bluebooks they were scoring), although that may be less true of 2d- and 3d-year courses, especially seminars. I think the professors were also required to grade on a reasonably steep bell curve, skewed slightly to the right by grade inflation but certainly not to the point where distinctions at the top became meaningless. At least, such was the case when I recruited for law firms there in the 1980s and early 1990s. (We had a much harder time recruiting at Yale, where their honors/pass/fail system made it almost impossible to guess where a student stood relative to his peers.)

From what I've read, Obama's selection as the first black president (equivalent to "editor in chief" at other law reviews) of the HLR was indeed due to astute politicking on his part, so I set less store in that credential than I do the magna cum laude designation.

Dear Mr. Dyer: I accept your judgment that a "magna cum laude" at Harvard Law is real, and not just grade inflation. But that deepens the puzzle. He works like blazes at Harvard and nowhere else. He has the smarts to get magna cum laude, but not enough to see that sticking with Trinity United Church for years was going to cause him trouble. This second point could be the difference between intelligence and wisdom I suppose. Be an interesting question to ask him: What was it about Harvard that made you work, as opposed to coasting as you seem to have done with the rest of your life? He could crack back to this loaded version of the question with: I'm here and you're there, squawk all you want. But the underlying question is of interest, though never to 95% of the press. It makes for an ominous feeling. Kennedy had the same sort of personality, though Kennedy's serious health troubles accounted for some of this. But the tuition the nation had to pay for Kennedy's improvisations and reliance on charm was steep. Today's tuition will be no less.

IANAL, obviously, but it would seem to this layman's simple mind that the hard work and intelligence to succeed, and succeed phenomenally, at HLS are quite different from the kind of hard work and intelligence to succeed in the political world.

OTOH, having secured sufficient delegates to win the Democratic nomination for President, it would be hard to say he hasn't succeeded, and succeeded phenomenally, in the political world.

No one is arguing that Mr. Obama has not achieved success. Both our host and Mr. Koster are arguing that the reasons for his success, and his apparent lack of effort in more substantive pursuits, lead to valid concerns about an Obama presidency.

I am not all that concerned about Mr. Obama's "energy level". I am concerned about an Obama presidency for a different reason. By far the most important thing a President does is pick people to give him advice and to do critical jobs. Recent events show that Mr. Obama has (at times) stunningly poor judgment in these kinds of decisions.

Now, Mrs. Clinton and Mr. McCain have had some bad people decisions, but they both have much better "batting average" with people overall.

Tom Jedrz, you really want to talk about Hillary and McCain's batting average with people and acquaintances? Really? How many investigations did Hillary weasel out of with the favored "I don't recall" defense? LOTS. McCain and his wife barely escaped indictments in the Keating 5 scandal that dovetailed quite nicely with one of the largest bailouts over corporate malfeasance and criminality in US history. Obama HAS never been seriously investigated for possible crimes. But you want to paint him as lacking judgment for associating with a pastor of a 8,000-member strong megachurch in his home town and a dude who, while being a former radical, was NEVER convicted of a crime and has held an esteemed professorial role at a major college for decades? I'll take the candidate whose friends are a little suspicious than the candidate himself or herself who IS suspicious. People are so furiously trying to get Obama on guilt by association that they're forgetting that Hillary and McCain have been in the center of their own serious and potentially felonious legal troubles. It's laughable.

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